The Gazette 1996

GAZETTE

L A W B R I E F

APRIL/MAY 1996

• 1 1 III"

III» El III

~a f T f ! « I i i k r i J j n ^ r g J . », :.

*s K t r t tl

p i j J m s f e t t s f f i

i ii • i i i t • •^•^•a g'm

tfw1*

www

L i t i ga t i ng in t he Queen's Bench Di v i s ion, London

by Dr. Eamonn G. Hall

A Culture Shock

Some weeks ago, the writer, (as a

solicitor admitted in England and

Wales) represented (with counsel) a

party to proceedings in the Queen's

Bench Division, High Court of

Justice, London. The case related to

an alleged breach of contract subject

to the jurisdiction of the English

Courts. The "Reply and Defence to

Counterclaim" stage had been

reached and the plaintiff had been

obliged by the

Rules of the Supreme

Court

to apply to the court for

directions. If a plaintiff fails to issue a

summons for directions pursuant to

the

Rules of the Supreme Court,

any party interested may do so and

may apply for the action to be

struck out.

In the context of this note, the writer's

philosophy is simple. If the writer can

represent a client in the English

Courts; so can others. This note

endeavours to record the writer's first

experience in representing a client in

the English High Court and to draw

attention to differences between Irish

and English procedures. We, in

Ireland, should not hesitate to adopt

the best practices and procedures from

any jurisdiction with the intention of

improving legal services for the

persons for whom we serve - the

people of Ireland.

The experience in the Queen's Bench

Division was something of a culture

shock for the writer with the judge

exercising an impressive control over

the conduct of the case and adopting

an inquisitorial style in relation to the

nature and extent of the pleadings

already filed in court.

First, I was conscious of the 1995

A solicitor of England and Wales in

court dress.

Practice Direction (Civil Litigation

Case Management)

[1995] 1WLR 262

but was curious as to how the judge

would implement the practice

direction. The first two paragraphs of

the Practice Direction are worthy of

being quoted here:

1 "The paramount importance of

reducing the cost and delay of civil

litigation makes it necessary for

judges sitting at first instance to

assert greater control over the

preparation for and conduct of

hearings than has hitherto been

customary. Failure by practitioners

to conduct cases economically

will be visited by appropriate

orders for costs, including wasted

costs orders.

2. The court will accordingly exercise

its discretion to limit:

(a) discovery;

(b) the length of oral submissions;

examination and cross-

examination of witnesses;

(d) the issues on which it wishes

to be addressed;

(e) reading aloud from documents

and authorities."

The experience in the Queen's

Bench Division constituted a

culture shock for the writer

with the judge exercising an

impressive control over the

conduct of the case and

adopting an inquisitorial style

in relation to the nature and

extent of the pleadings already

filed in court.

The concept of "wasted costs" is of

paramount importance for all lawyers.

The expression is defined in section

51 of the (UK)

Supreme Court Act,

1981 as amended by section 4 of the

Courts and Legal Services Act, 1990.

"Wasted costs" includes costs

incurred by a party as a result of any

improper, unreasonable, or negligent

act or omission of any legal

representative. A failure, for example

by either counsel or solicitors to

conduct cases economically may be

the subject of a wasted costs order.

See

Ridehalgh v. Horsfield [

1994] Ch.

205 and Order 62 r. 11 of the

Rules of

the Supreme Court 1965.

The Hearing

Having arrived at the High Court of

Justice in good time, the writer

approached a lady wearing a black